The Hadiya case was always about agency

Published: 09th March 2018 04:00 AM |

Last Updated: 09th March 2018 03:14 AM | A+A A- |

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The Supreme Court got it right. In a welcome order Thursday, the apex court set aside the Kerala High Court’s verdict annulling the marriage between Hadiya and Shafin Jahan on the grounds that Hadiya appeared before the Court and said she had married Jahan. The Kerala HC had annulled the marriage while hearing a habeas corpus petition filed by K M Ashokan, Hadiya’s father. That petition was the second he had filed claiming his daughter had been forcibly converted to Islam.

The HC’s verdict gave “custody” of Hadiya to her parents, despite Hadiya being an adult at the time, and declared her marriage void. Its judgment noted: “... a female in her twenties is at a vulnerable age. As per Indian tradition, the custody of an unmarried daughter is with the parents, until she is properly married …” This infantilisation of an adult women and nullifying of her agency sent shockwaves across India, as it set a dangerous precedent. Hadiya spent close to a year with her parents in what she termed “unlawful custody”.

When the case reached the SC, on a special leave petition filed by Jahan, the court made the controversial decision of ordering an NIA probe into the case, arguably validating the case for ‘love jihad’ being practiced across the country and raising the question of whether every consensual Hindu-Muslim marriage was at risk of being probed to the state’s satisfaction. Speaking before the court, Hadiya asserted her choices were made of her own free will, yet she was sent back to continue her studies.

The Court’s final decision on the matter, then, is cause for great relief, even as it said the NIA probe was to continue.The case was set up as a conflict between national security and personal liberty. It is telling the personal liberty so easily encroached upon was that of a woman. In Thursday’s order the SC finally affirmed Hadiya’s agency stating the HC was wrong to annul the marriage “because … she appeared before this Court ... and admitted her marriage with appellant No.1”. That is how simple the case was at its core.